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The Complex Relationship Between Discrimination Grievances and Human Rights Complaints

As we learn in Employment Law courses, work law is complicated by overlapping legal regimes.  For example, a single decision by an employer to dismiss an employee can give rise to legal proceedings under the common law (such as a tort action), grievance arbitration if the employee is unionized, as well as any HR-tribunal3number of employment-related statutes.  Sometimes, an employee is precluded from pursuing one legal route if they have initiated a proceeding in another legal venue.  In other instances, there is nothing preventing an employee from pursuing multiple proceedings at once.

Discrimination issues can give rise to overlapping regime issues.  In a unionized workplace, the most common route for employees to seek redress for perceived wrongs is grievance arbitration under the collective agreement’s grievance and arbitration provisions.  Many collective include prohibitions on discrimination, so an employee who believes she has been discriminated against by her employer can file a grievance.  The employee can also file a human rights complaint alleging a violation of Section 5 of the Human Rights Code.

What happens when there is both a grievance and a human rights complaint challenging the same employer actions?

In the simplest scenario, the union brings the grievance to arbitration, argues the human rights issue, and the arbitrator decides whether there was discrimination.  In that case, the Human Rights Code provides an answer.  It’s found in Section 45.1:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

If the arbitrator deals head-on with the subject of the human rights complaint, then the Human Rights Tribunal will probably dismiss the human rights complaint pursuant to its s. 45.1 power.  Although sometimes it is not clear whether another legal proceeding has in fact dealt with the human rights issues, and I’ve noted before some odd rulings in this regard.

Things are more complicated when the grievance doesn’t make it to arbitration because either: (1) the union withdraws the grievance because it thinks it has no merit; or (2) the union settles the grievance before it makes it before an arbitrator.

These two issues arise because, under most collective agreements,  the union has ‘carriage’ of a grievance.  That means that the union ‘owns’ the grievance, not the employee (grievor).  Therefore, the union is within its legal rights to drop or settle a grievance, even if the employee (grievor) would like to proceed to arbitration.  Unions act as gatekeepers to the very expensive arbitration process, weeding out grievances that lack merit or can be settled on reasonable terms.

The Tribunal has said that a settlement of a grievance is a “proceeding” under s. 45.1. (See Dunn v. S.S.M.)  But when does a settlement “appropriately deal” with a human rights dispute?

Let’s review the various scenarios.

If the union settles a grievance, the settlement resolves the human rights issue, AND the employee signed the settlement, then the Human Rights Tribunal will probably find that the human rights issue has been “appropriately dealt with”, and dismiss the complaint. That’s easy.

If the union drops the grievance, because it thinks it has no merit, then the complaint has NOT be appropriately dealt with in another forum.  It never reached an adjudicator, and it wasn’t resolved in a settlement.  That’s what happend in a recent decision of the Human Rights Tribunal called Davila v. McKesson Canada  The employer tried to argue that the withdrawal of a discrimination grievance by the union should cause the Tribunal to dismiss the employee’s human rights complaint.  The Tribunal rejected this argument:

 There is no dispute that the applicant’s union withdrew her two grievances based on its opinion that the grievances were unlikely to be successful at arbitration. It is also not disputed that the grievances were withdrawn on a “without prejudice or precedent basis”. Consequently, there was no formal resolution of the grievances by way of a full and final settlement or arbitration decision. As such, I find that no “proceedings” have been completed which have dealt with the substance of the Application.

In Davila, the withdwawal of the grievance was made ‘without prejudice’.  Do you think that this matters?  What if the union just simply withdraws the grievance?  Do you think that would “appropriately deal with” the human rights issues?

If the union settles the grievance over the employee’s objections and without their consent, which a union can do if it has carriage of the grievance, then the issue is more muddy. In some cases, the Tribunal has ruled that in such a case, the matter has not been ‘dealt with’, and allowed the human rights complaint to proceed.  For example, see Lumley v. Trillium Lakehead, where the Tribunal said this:

To find a settlement has appropriately dealt with the substance of a human rights application, the applicant must be a party to that agreement.  To put it simply, the applicant must receive some benefit from the agreement.  How else can it be said that the applicant’s application has been dealt with under the terms of the settlement?  To hold otherwise would allow employers and unions to potentially bar human rights complaints on the basis of a settlement between them.

See also Lemiuex v. Guelph Hospital, where a settlement of a grievance granting the employee monetary compensation did not bar the human rights complaint, because the employee had objected to the settlement.

In other cases, the Tribunal has dismissed the human rights complaint, finding that the settlement between the union and the employer ‘dealt with’ the human rights issues, even though the employee did not agree to the settlement.  If the employee receives a benefit from the settlement, and accepts the benefit, then it is more likely that the Tribunal will find that the employee implicitly agreed to the settlement.  So, in Rysinski v. Aecon Industries, the union settled a grievance without the employee’s consent on terms that gave the employee monetary damages, which the employee accepted.  The Tribunal ruled that the settlement dealt with the human rights issues.  A similar result followed in Bhandari v. Ontario (employee derived a ‘significant benefit’ from the grievance settlement, even though he did not consent to the settlement).

Finally, what happens if an arbitrator and the Human Rights Tribunal come to different conclusions about whether an employer has violated the law by dismissing an employee?  That possibility arises because an arbitrator could uphold a discharge of an employee without adequately dealing with the human rights components of the case.  If that happens, it is theoretically possible that an arbitrator could find that a dismissal does not breach of the collective agreement, while the Human Rights Tribunal rules that the discharge violated the Human Rights Code.   That scenario arose in a case called Barker v. SEIU, which I described a while back.

Clear as mud?

Questions for Discussion

Do you think that an employee should be denied the right to go forward with a human rights complaint against her employer if her union has settled or withdrawn her grievance alleging a human rights violation?

Are you concerned about a union being able to deny a worker the ability to proceed with a human rights complaint?

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2 Responses to The Complex Relationship Between Discrimination Grievances and Human Rights Complaints

  1. Bruce Dust Reply

    February 26, 2013 at 8:31 pm

    Mr. Doorey, I think the ‘without prejudice’ withdrawal of Davila’s grievance was helpful, because the argument could be made that simply withdrawing the grievance implies the union has consciously decided there is no merit to their member’s discrimination grievance. That said, the ONHRT would probably use their ability to liberally interpret (s.41) the Act and their rules to achieve a fair/just result and hear the complaint if the grievance was simply withdrawn.

    Where the union settles a grievance that has a human rights component, with no to little worker involvement, I think that Reps. should suggest that their members object to the settlement yet take what is offered by the employer. This, at least, leaves the option for the worker to take their case to the tribunal.

    Would the union’s duty of fair representation not require them to mention to their member the implication of accepting a settlement? Often the worker is ‘over a barrel’ in that, they may have been out of work for some time and in desperate need of money. Could a worker argue they only accepted a settlement because they were under duress? But, I’m making more mud, aren’t I?

    The employer (deemed to be more sophisticated and almost always with more financial wherewithal) should ensure a top quality MOS is drawn up if/when grievances are settled and workers’ have no (or very little) input into the case.

    It wouldn’t hurt for the employer’s counsel to be forthcoming (instead of, possibly, trying to pull a fast one on a worker) and explain ALL the ramifications of a settlement offer.

    While not always possible, unions should guide their members in the selection of forum and in accepting settlements that is in the grievor’s best interests. I understand the horse-trading that can go on in deciding what does and does not go to arbitration (an expensive process, to be sure). Where a settlement is in the interest of the broader membership (and sometimes those are to be preserved), the union should ensure they don’t take foreclose (accidentally or otherwise) a worker’s right to file an application with the HRTO.

  2. John Reply

    May 11, 2013 at 8:03 pm

    “For example, a single decision by an employer to dismiss an employee can give rise to legal proceedings under the common law (such as a tort action).”

    An action for wrong dismissal would be a breach of contract action, not a tort action, through there may, of course, also be tort actions related to the dismissal, e.g. defamation.

    An employer would be foolish indeed to agree to the settlement of a discrimination grievance if the employee does not also consent.

    What I’ve long wondered about is the union’s liability to the employee if it withdraws or settles the grievance without the employee’s consent. Is that decision governed by the (very) low standard that applies to the union’s representation of its members under the collective bargaining agreement or does some higher standard apply given that the settlement may effectively be disposing of the employee’s statutory discrimination claim.

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